THE STRUCTURE OF INTERNATIONAL LAW
1. Why was the Peace of Westphalia perceived as a crucial turning point in the history and
development of public international law?
“The idea was to reduce the powers of transnational forces, like empire and religion, and instead
compartmentalize territory and individuals into sovereign states. Over time, this helped to establish
the state as the primary source of authority paving the way for an increasing sense of allegiance among
citizens to their respective states of nationality.” The Peace of Westphalia (1648) is identified as the starting point of classical IL. It was so important
regarding to IL, because it lead to the creation of a system of sovereign and independent states. A few
principles that flow from the Peace:
legal equality of States
non-intervention in the internal affairs of other states. What states did within their own
borders, was only their concern. If a government mistreated prisoners, this would have fallen
under the principle of non-intervention.
state consent as the basis of legal obligation. No international obligation for a state without
their own consent
Sovereign states are now the primary actors. Before states, the world was centralised around religion
and empire. Today there is less empire and less religion, this switched to sovereign states. Those states
have are legally equal, which means that everybody is on the same level. Practically, this can be
different… This idea comes from the Peace of Westphalia. States also can’t interfere with other states, you need to leave them alone (principle of non-
intervention). The Peace of Westphalia tried to make a structure in the world. It ended the Thirty Years’ War between
the Catholics and the Protestants. 2. What is the difference between natural law and legal positivism? Do you see any reflections of
the two theories in contemporary debates on public international law?
Natural law contains an all-embracing set of ideas about natural and social life in the universe and,
though primarily focused on the individual and his or her relations to the world, it also applied to states
by virtue on the fact that rulers were also individuals and therefore subject to it (jus natural). The rules
come through nature, like God created them. They were not really created, they were already there
and come from a sort of higher power. In contemporary international law, you can say that the idea of human rights comes from a higher
power or a moral behaviour. Jus cogens are rules from which a state can never be derogated from:
crimes of genocide, crimes against humanity, slavery… When you think about jus cogens, we can state
that this is natural law, because it’s normal that those things are forbidden. Legal positivism is the creation of law by people/nations and it is from this that international law as we
know it subsequently developed as a discipline. The only true source of law was state will.
Consequently, positivism attached primary importance to state consent, whether expressed explicitly
in the form of a treaty or implicitly by customary practices. States are only bound by legal positivism if they gave their consent. Therefore, states can choose which
rules they want to be bound by and which not. A state is not bound if they have not given their state
will. We can find this in treaties, because a state needs to give its consent. State practise is also legal
positivism, because they actively do something and this is based on their will. Because they act this
way, or do not act in a certain way, they express their will. 3. How would you describe the relationship between international law and national law in the legal
system of your state?
Belgium is a monistic country, which means that national and international law form a single legal
order. This holds that international law can be applies directly in the national legal system of states
and that the international norm prevails in the case of conflict. A dualistic country rephrases the international law. A treaty can only be part of the domestic law if it binds Belgium as a state, which means that the treaty
needs to into force. Art. 167 of the Constitution also says that a treaty can only be part of Belgian
domestic law if it got approval from the competent parliaments. 4. Why does the conception of a national sovereign help to explain the role and primary purposes
of international law?
National law can’t deal with issues that involve more than one sovereign state. 5. What is the difference between the international law of coexistence and the international law
of cooperation? Why is the law of coexistence a more stable structure?
The international law of coexistence contains the answers required to separate the powers of the
sovereign states and thereby uphold peaceful coexistence. It seeks to ensure that states can pursue
their different and separate interests in a way that respects the sovereignty of other states. This is a
fundamental structure of international law and is therefore relatively stable and not subject to much
change. The international law of cooperation contains legal answers to issues that are not inherently of interest
to two or more states, but which have nevertheless been turned into matters of international concern
through the adoption of a treaty.